Southern Bell Tel. & Tel. Co. v. Edwards

• Decision Date: 09 January 1934
• Citation: 253 Ky. 727,70 S.W.2d 1
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. EDWARDS.
• Court: Kentucky Court of Appeals

70 S.W.2d 1

253 Ky. 727

SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. EDWARDS.

Court of Appeals of Kentucky

January 9, 1934

Rehearing Denied May 1, 1934.

Appeal from Circuit Court, Webster County.

Action by Frank Edwards, by his next friend, Leamon Edwards, against the Southern Bell Telephone & Telegraph Company. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

Trabue Doolan, Helm & Helm, of Louisville, J. M. Rayburn, of Dixon and J. C. Cannaday, of Providence, for appellant.

Withers & Lisman, of Dixon, for appellee.

CREAL Commissioner.

On June 22, 1931, Frank Edwards, a youth about 18 years of age, while riding on the running board of a truck driven by James Humphrey, Jr., along Dixon street in Providence, Ky. came in contact with a telephone pole of the Southern Bell Telephone & Telegraph Company and sustained severe injuries. He instituted this action by his father and next friend, and has recovered judgment against the company for $1,500, and it is appealing.

In the petition it is alleged that appellant negligently and wrongfully placed and maintained its telephone poles and especially the pole with which he came in contact in such close proximity to the traveled portion of the street as to render it dangerous and unsafe to persons using the street that at the time of the accident and for many months prior thereto, appellant knew or by the exercise of ordinary care could have known of the dangerous and unsafe condition in which the pole was placed and maintained.

The first paragraph of appellant's answer is a general denial of the allegations of the petition. In a second paragraph it pleads contributory negligence, and in a third paragraph and in an amended answer it is alleged that the accident was caused solely by the concurrent negligence of appellee and the driver of the automobile. The issues were completed by an agreed order treating the affirmative matter in the answer as amended as controverted of record.

The evidence shows in substance that appellee and young Humphrey who was driving his father's milk truck decided to go bathing. They drove to a drug store to procure a bathing suit belonging to one of the boys and there met two young ladies. At the suggestion of some of the party, the young ladies were taken for a short drive out Dixon street. They got in the seat with Humphrey, and appellee stood on the right running board, holding to a handle of the door of the truck. While riding in this position, he came in contact with one of appellant's poles with such violence that he was knocked off the running board and sustained a fracture of the skull, total loss of sight in the right eye, and great impairment of the vision of the other.

The street at and near the scene of the accident is 22 or 23 feet in width and surfaced with rock asphalt with a concrete gutter and curb on either side. The concrete gutters are 18 inches wide and have the same slope as other portions of the street, thereby forming a part of the traveled portion of the street. The curb is 6 inches high, and is about the same thickness, but is rounded off at the top next to the street.

Leamon Edwards, father of appellee, testified that the space between the outer edge of the curb and the nearest portion of the base of the telephone pole was 3 inches and others testified to the same effect. Witnesses for appellant testified that this space was about 9 inches, but it is not clear whether they refer to the outer edge of the curb or to the inside, defining the traveled portion of the street; however, we assume from the questions asked they refer to the distance from the traveled portion of the street. Uncontradicted evidence shows that the telephone pole leans toward the street and that a plumb line dropped from the edge of the pole nearest the curb 6 feet from the ground would fall on the curb about one inch from the outer edge thereof.

The Humphrey boy testified that, on approaching the pole which appellee struck, he understood appellee to ask him to drive over toward the pole; that at the time he was driving to the right of the center of the street, and, when appellee made the request, he swerved the truck about 2 feet further to the right. He testified that the right wheel of the truck or tracks of tires having a similar tread were about half on the asphalt and half on the concrete. One of the young ladies in the truck testified that she did not hear appellee make such a request of Humphrey, but that he cautioned him not to drive too close to the pole. While appellee testified that his memory was not clear as to all that occurred immediately before the accident, he was positive that he did not request Humphrey to drive toward the pole. Witnesses for appellant testified to having taken the milk truck to the point of the accident and placing the right wheels partly on the asphalt and partly on the concrete gutter, and stated that the space...